My Professor, My Judge, and the Doctrine of Judicial Review

Imagine if you picked up your morning paper to read that one of your astronomy professors had publicly questioned whether the earth, in fact, revolves around the sun. Or suppose that one of your economics professors was quoted as saying that consumers would purchase more gasoline if the price would simply rise. Or maybe your high school math teacher was publicly insisting that 2 + 2 = 5. You’d be a little embarrassed, right? You’d worry that your colleagues and friends might begin to question your astronomical, economic, or mathematical literacy.

Now you know how I felt this morning when I read in the Wall Street Journal that my own constitutional law professor had stated that it would be “an unprecedented, extraordinary step” for the Supreme Court to “overturn[] a law [i.e., the Affordable Care Act] that was passed by a strong majority of a democratically elected Congress.” Putting aside the “strong majority” nonsense (the deeply unpopular Affordable Care Act got through the Senate with the minimum number of votes needed to survive a filibuster and passed 219-212 in the House), saying that it would be “unprecedented” and “extraordinary” for the Supreme Court to strike down a law that violates the Constitution is like saying that Kansas City is the capital of Kansas. Thus, a Wall Street Journal editorial queried this about the President who “famously taught constitutional law at the University of Chicago”: “[D]id he somehow not teach the historic case of Marbury v. Madison?”

I actually know the answer to that question. It’s no (well, technically yes…he didn’t). President Obama taught “Con Law III” at Chicago. Judicial review, federalism, the separation of powers — the old “structural Constitution” stuff — is covered in “Con Law I” (or at least it was when I was a student). Con Law III covers the Fourteenth Amendment. (Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases — Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.) Of course, even a Con Law professor focusing on the Bill of Rights should know that the principle of judicial review has been alive and well since 1803, so I still feel like my educational credentials have been tarnished a bit by the President’s “unprecedented, extraordinary” remarks.

Fortunately, another bit of my educational background somewhat mitigates the reputational damage inflicted by the President’s unfortunate comments. This morning, the judge for whom I clerked, Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit, called the President’s bluff.

Here’s a bit of transcript from this morning’s oral argument in Physicians Hospital of America v. Sebelius, a case involving a challenge to the Affordable Care Act:

Judge Jerry E. Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?

Dana Lydia Kaersvang (DOJ Attorney): Yes, your honor. Of course, there would need to be a severability analysis, but yes.

Smith: I’m referring to statements by the President in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.

That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.

Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –

Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the President, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the President’s statements and again to the position of the Attorney General and the Department of Justice.

I must say, I’m pretty dang proud of Judge Smith right now. And I’m really looking forward to reading that three-page, single-spaced letter.

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Thom Lambert

I am a law professor at the University of Missouri Law School. I teach antitrust law, business organizations, and contracts. My scholarship focuses on regulatory theory, with a particular emphasis on antitrust.

166 responses to My Professor, My Judge, and the Doctrine of Judicial Review

What did the President say that Harlan didn’t say in his vigorous dissent in Lochner?

The responsibility therefor rests upon legislators, not upon the courts. No evils arising from such legislation could be more far-reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom, annul statutes that had received the sanction of the people’s representatives. We are reminded by counsel that it is the solemn duty of the courts in cases before them to guard the constitutional rights of the citizen against merely arbitrary power. That is unquestionably true. But it is equally true — indeed, the public interests imperatively demand — that legislative enactments should be recognized and enforced by the courts as embodying the will of the people unless they are plainly and palpably, beyond all question, in violation of the fundamental law of the Constitution.

It is unbelievable how misinformed most of the trolls on this site are. You people don’t even know what “socialism” or “marxism” is. Not to mention the gross misrepresentation of Obama’s statement fueling the troll rage of the commenters captured by this article.

Yeah… I’m not the one deliberately misrepresenting the words of the President in order to spread hatred and misinformation. Obama is more of a republican than any other candidate since Nixon. Today’s GOP is radical and ideologically fascist. Cries of socialism and marxism, etc, belie either a total ignorance of the definition of those words, or intentional misrepresentation in order to further an ideological agenda. What’s more, such bitter vitriol as expressed in the majority of these comments adds exactly zero to the conversation about the efficacy of constitutional interpretation.

The most important point here that most repsondents seem to be ignoring is the fact that the president was attemtping and continues to attempt to intimidate SCOTUS, a co-equal branch of government. It has been a while since I have read the older and more objective historical tomes written on our history as a republic but the only instanceS that I can recall of such attempt at intimidation was by Andrew Jackson and the would-be “court-packer”, FDR. In my mind, this is just another of the clumsy attempts by Obama to grab more power and it should not be tolerated by the voting public. If we do not throw out this usurper and would-be dictator in November, then we deserve the ensuing fate which undoubtedly will occur.

The arrogance of Barak Obama never ceases to amaze me. The gall of that man who thinks that he can single-handedly re-write laws in order to advamce his socialist agenda! When will that lily livered Dems in the senate join the Republicans and stand up to Obama;s crooked actions that are destroying out country?

It’s an interesting political chess game not often undertaken by the executive and the legislative branches of our three part system.
The game can end in a draw or even have one side declared by the hypothetical 4th arm of government, the media, a winner.
The loser however has no penalty to pay.
Congress, the third branch of government, is too politically paralyzed to make a move of it’s own.
Stalemate . . . . .

This Prez is doing exactly what every Marxist, who consistently pushes his marxists policies does. One of the first thing a marxist does is to neutralize any one,or any group who have equal power. Our government has three branches:Executive,Judicial, Legislative. We’ve already seen him mock the legislative and the judicial………..so he once again questions the Judicial and gets a lot of media attention……especially from the Nonobjective Bias Yellow Media…….(ABC,NBC,CBS,CNN,PBS…etc.etc….)….perhaps BO did find the “Marxists, he sought after when he went to college”…according to the book he wrote……and they sold him a bag of garbage and he believed.

This President is beginning the liberal attack on the U.S. Court system and Judicial Branch of government. Until now, They have embraced the court, but the conservative revolution is forcing them to demonize the branch of government they once loved.

It will be slow, but over time they will attempt to create more mysticism and outrage towards the most misunderstood branch of government. Their main tool will be the government-ran public school system as they redefine the court’s role in government.

You fail to recognize that Obama is an Alinskyite, a perpetrator of the “Big Lie”. Obama was looking past the legal intelligentsia; to his base. It wasn’t a gaff at all, but a deliberate distortion of the facts. One only has to read his base’s reaction in the Hufpo and see how it affected them to understand what Obama was doing. He’s trying to save face and put the onus of his failure to properly vette the constitutionality of Obamacare on the SCOTUS. Nothing else matters to him, even the bald faced humiliation heaped upon him by his critics. His base won’t pay attention to the fact that the DoJ acknowledged the Court’s jurisdiction because the main stream media will put that confession on page 2. My God, gentlemen, I’d hoped you realized by now that the only thing that matters to this man is the next election.

Here is what Pres. Obama actually said. He was quoting that esteemed professor of Constitutional Law Sarah Palin (among others) who made this remark about judges who struck down bans on gay marriage.

“And I just remind conservative commentators that for years, what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint. An unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident this court will recognize that and not take that step.”

Perhaps Eric Holder should have written this:

Dear Judge Smith:

Boy, am I glad you asked about judicial review! By coincidence, this is a matter that the Department of Justice (hereinafter “Dee Oh Jay”) has been pondering for some time. I have a task force of several former Law Review students at prestigious law schools preparing a report, and expect it to be available in about three years. We would prefer that timeline in getting back to you rather than Thursday, because as the great legal scholar A.P. Herbert once said “Nullum tempus occurit regi.” I believe it means “Time is no object to a government department. However, the actual translation for this common law doctrine according to no less an authority than Wikipedia is”no time runs against the king”; but in a republic it is often referred to as nullum tempus occurrit reipublicae.

(Am I allowed a blank line between paragraphs in complying with your order? What size font may I employ? What should the margins be?) Sometimes court orders like this leave more questions to be answered than they resolve!)

With regard to the actual and precise question asked by you: “What is the position of the Attorney General in regard to the recent statements of the President..” let me assure you that the Attorney General is well aware that he is subordinate to the President and serves at his pleasure.

Any former Attorney General will tell you he lists on his resume “served at the pleasure of the President of the United States,” which places him in the same category as a Thanksgiving Day turkey that did not receive a presidential pardon.

With regard to the specific question you are pondering, we have followed the guidance of the great legal scholar Justice Clarence Thomas (who does not ask these kind of questions on oral argument–or any kind), and we have looked carefully at the text of the Constitution.

Search as we might, even using ultraviolet light to see if there was anything about judicial review on it in invisible ink or ink that may have been faded, we found no reference. We even looked at the back like they did with the Declaration of Independence in that movie “National Treasure.”

We have therefore concluded that a matter as important as judicial review, which would affect the balance of powers between the branches of our government, would surely have been included in the Constitution if the Founding Fathers has intended that power to exist. We believe that Justice John Marshall, a judicial activist active in the Federalist Party and a person unelected by the people of the United States, made up judicial review out of whole cloth to embarrass a sitting Democratic Party president. The Marbury v. Madison decision was the Bush v. Gore decision of its time.

We are, therefore, very grateful that you brought this matter to the attention of the Dee Oh Jay. We plan to ask the Supreme Court to look into the matter of overturning Marbury v. Madison in the near future, and we wonder if the case in which you required this letter is the appropriate one?

What do you think? Please reply in a three page single space letter to Eric Holder in due course. Thanks in advance for you promptness in replying with all deliberate speed.

Obama isn’t stupid, he is arrogant narcissicst, who believes he is above reproach. He knew, and I say understands that this mandate is unconstitutional before it was ever passed. But, he is going to push his power to the limit, which he has done in these remarks concerning the SCOTUS.
He crossed the line, and no amount of circle speak by his toady Jay Carney in the Press Room is going to get it back in the bag!
It is about time the MSM takes these people to task it has only taken 4 years!

Very interesting discussion. Did Obama not teach the course referred to in the OP? He was considered a professor by Harvard Law School, he lectured for 12 years, and they state he was asked to join the full time faculty several times but declined.

Will the DOJ statement be published?

The most important thing is that it seems to me more and more Americans must begin to see this a very bizarre man. His magical thinking is beginning to show in ways that cannot be ignored. It’s as if the man is operating in an alternate universe. It’s as if this administration believes they can just say anything and remain impervious to reality.

Perhaps Obama envisions himself Thomas Jefferson and Hillary Clinton is Madison. Kind of a a go ahead make my day posture to the Court. Justice Marshall needed to be careful with that case, perhaps Obama thinks Justice Roberts is Justice Marshall. Perhaps he is trapped in a time warp.

Obama has been disrespectful to Congress and the House all along, telling the citizenship that they are useless , yet bows to foreign leaders and pansies to Russia, that he will come alone after the elections. Impeach the traitor.

This thread has raised the issue of Obama’s position as “Adjunct Professor” which I think is a matter of some importance as the press, in an apparent attempt to insert particular and unqualified authority to one of Obama’s pronouncements, routinely inserts reference to his having been a “Professor of Constitutional Law.”

In reality, an “Adjunct Professor” is someone his temporary employer hopes is at least marginally qualified to teach a particular class and, most importantly, is willing to do so for pittance. “Adjunct Professors” are almost never allowed to teach a course of substantive importance to a degree being sought by students, most often fall into a category of “continuing education” or “night-school” or “practical application”, and almost always are taught at a time or place when and where genuine faculty would moan in protest about the assignment (e.g., night school or a Saturday class or a class at a satellite campus). Sometimes, “Adjunct Professor” is a title passed out to flatter a professional in the community that may be important to town/gown and/or alumni relations, but most often it just means “willing to work cheaply” and hides this fact better than being called an “Ad Hoc Part-time Instructor.” Whether at an Ivy League university or rural state teacher’s college, very few holding this title would be viewed by regular faculty within the department retaining them as a quality hire for a tenured or tenure-track position.

In most instances, this would be because the individual lacks a record with serious research or scholarly credentials. “Professor of Constitutional Law” at a world-class institution like the University of Chicago is an august title held by a world-renowned legal scholar with many influential publications. In this context and at the time, with his credentials, Barack Obama might at best have been offered a apprentice position as a first year research assistant to someone entitled to being called (or to call himself) “Professor.”

If anyone knows of any written record supporting the idea that Barack Obama is a legal scholar (or even a good practicing attorney), perhaps one of the attorney’s reading this thread could point it out. As a matter of interest, I would love to read at least some of whatever work he might be able to claim as his own, for example scholarly review, a legal opinion, a brief, or even a recorded property abstract!

Absent some citations, then I would love to see someone from the third estate explain how President Obama claim of authority as a Constitutional scholar is allowed to pass unchallenged.

“The Law School has received many media requests about Barack Obama, especially about his status as “Senior Lecturer.”

“From 1992 until his election to the U.S. Senate in 2004, Barack Obama served as a professor in the Law School. He was a Lecturer from 1992 to 1996. He was a Senior Lecturer from 1996 to 2004, during which time he taught three courses per year. Senior Lecturers are considered to be members of the Law School faculty and are regarded as professors, although not full-time or tenure-track. The title of Senior Lecturer is distinct from the title of Lecturer, which signifies adjunct status. Like Obama, each of the Law School’s Senior Lecturers has high-demand careers in politics or public service, which prevent full-time teaching. Several times during his 12 years as a professor in the Law School, Obama was invited to join the faculty in a full-time tenure-track position, but he declined.” http://www.law.uchicago.edu/media

It does not say what courses this guy who was “regarded as a professor” taught.

Obama is a demogogues and an ideologue of the first-order (Marxist). Like FDR and his dictatorial “progressive” ilk, the Constitution is an impediment to transforming the foundation of the nation from a republic to a “dictatorship of the proletariat”. Of course, what happens when you have slight regard for the Constitution? You get things like FDR’s concentration camps for Americans of Japanese ethnicity during WWII. Imagine the fun we’ll have when we finally throw off the yoke placed on us by those racist white men of yore and their crusty, out-dated ideas. ;)

I had to read President Obama’s original statement over several times. His statement was so absurd that I thought I had to be misunderstanding it somehow. Turned out I wasn’t. Those supposed dolts, George W. Bush and Sarah Palin, must have felt a great sense of satisfaction at seeing the purported smartest president ever make an ass of himself…again. I feel sorry for his poor law students that had to suffer such incompetence. The University of Chicago Law School (and Harvard Law) must be feeling a bit let down as well.

You people all boggle my mind. Judge Smith should not only be embarrassed, he should be reprimanded. He is a shining example of activism from the bench and why there should be term limits.

For those that are too lazy to read or listen to actual transcripts (like Judge Smith himself apparently) listen to the audio starting at 18:00 here: http://www.ca5.uscourts.gov/OralArgRecordings/11/11-40631_4-3-2012.wma
He’s making an ass of himself and those that defend him are doing so as well. Also of note is that Judge Smith did use the term ‘Obamacare’. Listen to the audio transcript — it’s right there at 20:40 in his explanation of the homework project that he’s assigning (3 pages, single-spaced no less) “judicial review as it relates to the specific statements of the president in regard to Obamacare and to the authority of the Federal courts to review that legislation”

What is even more interesting is that the MSM is mum on this.
If the president were correct, I guess Roe v. Wade would not have overturned the established law that prohibited Abortion.

Liberals like to talk out of both sides of their mouth, and never worry about the truth. If a court overturns a law in their favor, they celebrate. If it does the opposite, they cry foul and unfairness.

The MSM is too busy constructing a case of a racism in FL and ignoring what the pres says.

He’s been lying almost every time he gives a speech or talks.

1. The insurance companies are going to have to provide abortifacent drugs and oral contraceptives to employees of Catholic Institutions for free.

2. We use 22% of the world’s supply of petroleum and only generate 2%. He lied, he compared the 2% in reserve to the 22% we actually use. We have enough oil under our content to run automobiles for the next 450 years.

3. Compares the taxes paid by an investor (capital gains) to those paid by an employee (income tax), 2 different taxes, different taxing schedules. Says the rich don’t pay their fair share (which is actually correct0. But he claims they don’t pay enough. He never discusses the fact that the top 5% of incomed people in the US probably pay about 60% of the income tax. Not a really fair share.

Why does he deceive? And lie? And where is the MSM? Have they become the new PRAVDA?

This almost sounds like the letter is a fraud from the get go. Professor Obama? where’s the proof? This is the first person to come forth who said that they knew Obama. Lets see and get some more details, like how many classes did he teach, was he a professor or a student professor, what were the dates of his professorship and what was his life experiences that he relayed to his students and classes—–Craving for First Hand Details???????????????????????????

Thom Lambert, watch your back for speaking out. Thank you for your perspective. I have wondered why his former students have not come forward and told us how great a teacher he was. It is nice to see someone speaking out against him for a change.

I know it’s difficult to separate political statements from actual policy decisions, you did go to law school not medical school, but the fact is a majority of congress deemed the law constitutional and appropriate.

The president is very much allowed to speak his opinions on the matter and you are free to disagree. The Supreme Court does not respond to soundbites or Op-Ed pieces.

I would think that the actual college courses taught by Obama at any public institution, as well as the number of students enrolled in each course, the dates of each course, etc. should be public information. Isn’t that what “freedom of information” is all about? If he said he taught constitutional law and actually did not — well, just one more lie.

We need take another look at the commerce clause. Let me speak as a layman:

One of the landmark decisions regarding the interstate commerce clause ruled that transportation between states is an unspecified part of commerce between the states; specifically a state could not prohibit a federally licensed steamboat service from operating in a state’s navigable waters in preference to a state licensee if the waters crossed state lines. The commerce clause was interpreted before this time as dealing with legislative disputes between states arising from commerce i.e. tariffs. The new ruling can be viewed as the first Interstate Byway.
From the addition of the regulation of interstate transportation to the interstate commerce clause the next pivotal decision is one which we are more familiar is the case involving the wheat farmer Roscoe Filburn who grew wheat, not for sale in the market but for his own uses as livestock feed. This was in violation of Federal law which established limits (by regulatory commission) for acreage of wheat production in order to increase the price of wheat (federal price fixing). The government ordered the farmer to destroy the crop and pay a fine. The Supreme Court upheld this federal law stretching again the meaning of commerce.
Now regulating commerce means regulating markets. The federal government with the concurrence of a decision by a renegade Supreme Court can now involve itself in a command economy. This is socialism.

The President was right about it being “unprecedented” . . . when has the Court ever struck down a liberal statute? Restricting abortion, sure! Curtailing gay rights, absolutely! Prayer in school, all the time! But a liberal bill? Cannot think of one . . .

What happens if the DOJ says, “No.” Something along the lines of, “You have our briefs. Our attorney acknowledged the legitimacy of judicial review in Court. We do not, however, intend to start down the path of having the head of the Executive Branch justify out of court statements to a judge tasked only with deciding the cases before him.” What then would Judge Smith be able to do? Announce that he was deciding the case against the government because the Executive Branch did not respond as he willed? Hold the Attorney General in contempt? I think he may be acting beyond well his remit in demanding that a President justify his out of court actions to the Fifth Circuit. Politically, this may offer an opportunity for the Executive Branch to have a teaching moment about judges who don’t understand that their legitimate role is to decide cases according to the law, and nothing more.

So let’s also have another “teachable moment”. How about letting Judge Smith’s order be complied with and see how one branch of government, the Executive, is justified in attempting to influence and bully the Judicial into a ruling which satisfies the Executive, not on the merits of its constitutionality, but by the threat of Executive retribution.

Actually, the request to clarify the administration’s position with respect to judicial review is germane to the case at hand. The Fifth Circuit is considering a challenge to the Affordable Care Act by a number of physician owned hospitals. If the administration, in the person of the president, is publicly questioning the legitimacy of a court to review anything associated with the Affrodable Care Act, one could conclude that the administration’s advocate would also question such authority. It is a legitimate request to ask that advocate for clarification and, specifically, to ask for that clarification in writing. I think that the administration’s refusal to do so could be considered prejudicial to the case.

If the DOJ does that, then yes, they should expect every further decision that could go either way to go against them. In addition, refusing to comply will itself be enough to undo the political damage that the President inflicted on the SC.

I was listening to Rush this morning when he mentioned Tom Lambert’s comments about Obama and his seeming ignorance concerning Marbury v Madison. I thought to myself, could it possibly be the Thom Lambert I knew at Wheaton? Glad to see that it was – Good to hear from you. Efren Toledo

I guess none of you (including Judge Smith) read what the President actually said, and instead just relied on the little snippet that Thom excerpts. Good Lord — read the transcript. And I’ll just rely on what Orin said about the court’s misreading of the President’s remarks: “No, it’s not The Onion — apparently this actually happened. . . . If this story turns out to be accurate, it strikes me as extraordinarily embarrassing to the federal judiciary.”

“With respect to health care, I’m actually — continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That’s not just my opinion, by the way; that’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.”

So I agree with Orin that to take that one sentence and parse it out of context is a “rather obvious misinterpretation.” Either folks have just looked at the excerpt, or they’re trying to score political points. Thom’s “2+2=5″ is just demogoguery, and it’s misleading.

For the record, once again “hypocrisy” is the name of the game here, and I think I’m fairly consistent. The misuse of Romney’s “I like to fire people” quote is wrong, because he was talking about “firing” service providers, rather than employees. His language was bad, but it’s wrong to take the quote out of context. I think you have something similar going on here — the snippet can be taken totally out of context to mean something it doesn’t. So I wish people who should know better would stop doing it.

What is the aea code for “Denile, USA”? As President Nero Obama keeps watching the country burn with hatred, abysmal economy, no budget for how long from the Senate, vacations, golf games, NCAA brackets & parties; each of which is a much higher priority and being so much more important than our country, people like you just sit back & defend your choice for President. Damn, that is sad…

Thank you Mr. Lambert. Not too many folks out there from Obama’s past coming forward.

It’s appalling that a former constitutional law professor, now President, rejects the authority of the highest court in our land. Also, it’s shocking that President Obama governs like an ersatz dictator, attempting to bully duly-elected congressmen, senators, governors, entire states and now (once again, actually) justices of the US Supreme Court.

Hopefully the American electorate will remove Obama from office. He’s unworthy of the position he holds.

I heard a UCh Econ Professor today discussing his conversations with Mr. Obama at same time he taught. This was on WCBM in Baltimore, MD. This prof, forget his name, was introduced as having published six books and 100 scholarly articles. He’s also been associated with Yale and Rice. So he is credentialed. He said Mr. Obama was a lecturer, not a professor. He lectured three hours per week. The Econ prof said it was common knowledge that the job was a platform for him to campaign for office. Mr. Obama, he said, was doing that extensively.

Here is an example where this relationship was hidden by the press. The NYT interviewed this econ prof during the 2008 campaign. The econ prof told the Times of Mr. Obama’s strong belief that citizenry should not own guns – meaning the 2nd amendment has no place. I mean Mr. Obama would not even discuss the matter and got very peevish about it. The NYT published its piece without including any of this interview’s material. When the Econ prof inquired the paper about this, the paper said the Obama campaign advised that Obama never talked with this professor. It came across to me as an outright lie from the campaign, and the NYT did not bother to check it out further.

Please go to WND.com and see two interviews of two women who worked for the Hillary campaign. The stories about Obama campaign shenanigans, asserted fraud and criminality, will scare you.

Judicial actions in court often have no purpose. This is especially true in the state-trial court context. I worked with a judge a while back and couldn’t help but be amazed by how arbitrarily his proceedings were conducted. The lawyers, of course, knew this, but they also realized that they couldn’t really do anything about it. After all, how do you go about asking the judge to take things a little more seriously?

I remember once, in a civil trial, the judge, becoming exasperated by a long series of questions during an examination of a witness, actually stood up and began stretching and pacing back and forth around his bench. Then, suddenly, an objection was made by the opposing counsel in response to a question put to the witness, and the judge just said, “C’mon, let’s get on with it.” Sometimes the judge would even scream and shout at the lawyers for no good reason. Fortunately, the judge was always cordial with me, although I made sure never to overstep my bounds. I made sure always to do as I was told.

It really was an eye-opening experience. So don’t let this little anecdote about Judge Smith surprise you all that much. It is all just one big circus.

Since Judge Smith is not a state-court judge and the case in question was not a trial proceeding, but an appeal before the Fifth Circuit regarding a federal law, I’m not sure what the relevance is, unless you intend to impugn all judges as stupid, or arbitrary, or both. In this respect, your anecdote is about as relevant as Lochner is to the Health Care Act case currently before the Supreme Court.

Attorneys are also sometimes stupid(!) They have also been known to parade in front of courtrooms like a couple of strutting roosters before a cockfight. One of the judge’s jobs is to remind them that they must be respectful of the proceedings, because disrespectful behavior and spurious arguments demean the law and tend to encourage further lawlessness among the citizenry. In this case, in the eyes of Judge Smith and many of the rest of us, the behavior of some officials, all of whom have all taken an oath to uphold the law and the Constitution of the United States, betokened a certain amount of disrespect for the institutions of the law. The Judge was right to remind the government lawyer in the most forceful way possible that it was neither his place nor that of the Justice Department to impugn the role of the courts in our governing system, but to function within it, at least until such time as the people of the United States change that system through a duly enacted Constitutional Amendment.

At least since his frontal attack in a State of the Union Address on Citizens United, President Obama and his administration have been mounting a frontal attack on the Supreme Court. This attempt to publicly intimidate the judiciary is something more appropriate to an authoritarian, centralized state than to one such as ours, based upon specifically enumerated powers and a system of checks and balances. Judges are right to hold the government to account for its statements, especially given that this same government is urging the Courts to use the same precedent of Marbury to strike down another validly-enacted piece of legislation, the Defense of Marriage Act.

Finally, a person who understands the language, uses it appropiately and is uncluttered by “big” words. Whom-ever you are Iillc, it is great to see someone who can write coherently and consisely. The questions regarding the “The Separation of Powers” is no little deal. I think everyone (and yes, this includes Voters) should be paying very close attention to what is taking place in the Hall’s of all government in the land.

If you don’t like the Constitution of these United States, you have the right(s) to organise and change it. It is formally called an “Amendment”. It is a very difficult process, but if one has the conviction (and masses), change has been known to occure.

Very seldomly does a US President have a mandate from an overwhelming majority of voters to do anything. However the art of “Getting Your Way”, that we call politics. When I hear Nancy Polosi screech “The American People have spoken”, my sadness for the uneducated in this country reaches unspeakable depths. If she were honest (let alone accountable) she would say this: “The majority people who voted in my district this year, voted for me.” When I hear the President of the United States proclaim “broad consensus in majorities in both houses of Congress” voted for the Health Care Act, my sense of arithmetic is certainly challenged. The use of the word “broad” is really pushing the truth.

Too often in this country we treat politics as a sport. Red vs Blue (If life was as simple as a ball game). However, words have meanings. When Presidents say things, things happen. Hopefully we have not shed a single drop of blood to prove what the meaning of “is” is.

Most judges are incompetent or corrupt and many are both. They really should not have as much power as they do. You essentially abandon all rights when you enter their little fiefdoms (courtrooms), and criticizing their stupidity and outright criminality can land you in jail with no recourse. We should have term limits on judges, and yes, they should be elected and removable by a recall vote. They should also have some type of oversight while in office and not by other judges or the scumbag lawyers who are just as bad or even worse. I don’t have all the answers, but the problem is obvious.

MGM, why don’t you go ahead and give President Obama a call and encourage him to review conduct by some Judges such as you describe and suggest that he publicly place Judge Smith in that category, and recommend that he ignore Judge Smith’s little anecdote. Be sure to tell him how you go along to get along regarding less than normal behavior by Judges and deem your reaction as best buy. Please encourage him. More sharp elbows in our collective Constitutional ribs will increase the growing crowd of backs turned against him. You are right about the circus behavior by some judiciary and in my opinion, that is applicable to most of our branches. The circus anecdote justifies the artist’s portrait of the clown. They do fit. Good Job. MGM, a few things I have garnered from your post that may or may not be accurate. First impression is that your statements are politically not judiciously inspired; that anger seeps and perhaps resentment due to perceived injustices of equality.

To Iillic’s response to MGM. Your mention of the requirement that our government officials honor and fulfill their Oaths of Office has become a popular topic of conversation with much anger, due to the flagrant internationally public ripping of that Oath by an official. It is of crucial importance to many that the brazen attack on our Constitution by one who swore a required Oath to protect and uphold our Constitution in order to achieve her seat on the USSC bench, be investigated by public trial. She brings with her the necessity of examining all other Justices for their acquiescence or rejection of her words. Also, there is a question of the source of authority used by the Justice to make such a statement. There is no doubt in most minds that there is a purposeful Agenda against our country being facilitated with the cooperation of many elected governmental officials.

MGM, why don’t you go ahead and give President Obama a call and encourage him to review conduct by some Judges such as you describe and suggest that he publicly place Judge Smith in that category, and recommend that he ignore Judge Smith’s little anecdote. Be sure to tell him how you go along to get along regarding less than normal behavior by Judges and deem your reaction as best buy. Please encourage him. More sharp elbows in our collective Constitutional ribs will increase the growing crowd of backs turned against him. You are right about the circus behavior by some judiciary and in my opinion, that is applicable to most of our branches. The circus anecdote justifies the artist’s portrait of the clown. They do fit. Good Job. MGM, a few things I have garnered from your post that may or may not be accurate. First impression is that your statements are politically not judiciously inspired; that anger seeps and perhaps resentment due to perceived injustices of equality.

To Iillic’s response to MGM. Your mention of the requirement that our government officials honor and fulfill their Oaths of Office has become a popular topic of conversation with much anger, due to the flagrant internationally public ripping of that Oath by an official. It is of crucial importance to many that the brazen attack on our Constitution by one who swore a required Oath to protect and uphold our Constitution in order to achieve her seat on the USSC bench, be investigated by public trial. She brings with her the necessity of examining all other Justices for their acquiescence or rejection of her words. Also, there is a question of the source of authority used by the Justice to make such an internationally public recommendation to Egypt not to template our Constitution because it is old and out of date and hard for her to work under, suggesting instead modeling after an European constitution preferably created after WWII. There is no doubt in most minds that there is a purposeful Agenda against our country being facilitated with the cooperation of many elected governmental officials.

It’s quite clear that the courts do have the authority to strike down all or part of the ACA, and the DOJ attorney conceded so much. What purpose does the letter serve? To put a legal gloss on Obama’s political statements that simply aren’t going to be part of the record of the case? Even if Obama’s arguments in a stump speech had legal merit, I’m quite confident that Smith would reject them as having not been argued/briefed, and thus waived.

So, as there’s no value to the letter for purposes of resolving the case before him, what purpose does Smith’s demand have?

This echoes my thoughts. The appropriateness of the sentiment of his substantive comments aside, Judge Smith’s demand comes across as a needlessly petty and vindictive punishment inflicted on a spear-carrier in the DOJ. If Obama was substantively wrong to make the statements he did, Judge Smith’s tangential slaying of the messenger in a manner only spuriously related to the claims at bar plays into the hands of those who would falsely equivocate his conduct with the substance surrounding the jurisprudential arguments at play in the political sphere.

This cheapens the court and I would hope our judiciary would stand above such antics. I can only imagine his fellow judges were mortified.

I disagree. He was hearing arguments for “Physicians Hospital of America v. Sebelius, a case involving a challenge to the Affordable Care Act,” so this wasn’t just some random “spear carrier for the DOJ.” In such a case, wouldn’t it be pertinent to determine beforehand whether the government actually recognizes his court’s authority to rule on the case? Otherwise, the government can continue to pick and choose which rulings to accept, after the fact.

Did a sitting federal judge really call the Affordable Care Act “Obamacare?” In many ways that’s more telling than the completely unnecessary diversion into politics during an oral argument on a specific legal issue.

I don’t think it is all that telling, myself. It seems as though nearly everyone is calling it “Obamacare” as short for it’s longer, formal name. They might be doing it because it rolls off the tongue easier.

Last month, the president’s re-election campaign asked people to tweet with #ILikeObamaCare. The official Democrats.org blog wrote: “If you like Obamacare, like it on Facebook, or get an Obamacare t-shirt.”

It is my understanding that any action by a plaintiff in a court case implies the court’s jurisdiction in the matter, and one of the primary potential challenges by a respondent is whether the forum chosen is correct.

Accordingly, if the administration chose to respond that “courts DO NOT have the authority in appropriate circumstances to strike down a statute because of one or more constitutional infirmities”, they would be denying such jurisdiction…..and have no standing to be either plaintiff or respondent in such courts — and would, thus, lose all their cases by default unless other interests with standing were to intervene.

I’m not a lawyer, but it just seems to me that waltzing into a court and telling the judge either “your opinion doesn’t matter” or “I shouldn’t be here” is a strategy for losing.

I thought of Judge Smith, and what he must be thinking, shortly after I heard the President’s challenge to judicial review. (And, impliedly, of the Constitution as the unapologetically counter-majoritarian supreme law of the land.) Judge Smith took it with just as much seriousness as I should have expected.

I look forward to reading the 3-page DoJ response. I’m sure it will be vetted at the White House.

A non-Smith clerk here who is curious as to what the authority for ordering the letter is?

To be clear, I’m not suggesting that Judge Smith doesn’t have the authority, just isn’t obvious to me what the source is.

It doesn’t go to the merits of the dispute, so it wouldn’t be a typical supplemental briefing issue (pursuant to Federal Rule of Appellate Procedure 28(j), for example, or Fifth Circuit Rule 28.4).

Perhaps it could be styled as something of a prospective show cause order, but that doesn’t seem quite right to me either, since the President wasn’t saying he wouldn’t follow the Court’s decision, merely that he is “confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law” (guttural sound / sigh). And show cause orders are generally not issued on events that haven’t transpired.

Judge Smith took it with just as much seriousness as I should have expected, which was not at all.

This “judge” gives a new meaning to the concept of undistinguished. He has been on the bench for 25 years and is no far out of the mainstreet that the has never put pen to paper on any opinion of lasting important. I don’t think he has an opinion published in any casebook.

His only claim to fame appears to be that he sat on a panel that affirmed Skilling’s conviction, reversed by the Supreme Court. E.g, US v. Skilling, 638 F. 3d 480 – Court of Appeals, 5th Circuit 2011

Are you advocating the election of Supreme Court Justices?
What is the role of the Judiciary among the three branches of government?
If precedent is to be enshirined as absolute – will you support the upholding of Plessy v. Ferguson and Korematsu vs. U.S. as unassailable?

I, too, was thrilled by the words and order of Judge Smith. I am, however, worried in a corner of my mind that Eric Holder’s Justice Department will try to find a way not to comply, and that Judge Smith will not be able to hold them in contempt, or that his brother justices will somehow dampen the whole thing down, as not being sufficiently germane to the case at hand. But I find it hard to believe that any swing votes on the Supreme Court won’t be tempted to vote against this unprecedented extension of the Commerce Clause, if for no other reason than for this flagrant attempt to bully the Supreme Court. Even Franklin Roosevelt had to back down before popular opinion when he tried to take on the Court, and (just between you and me) Barrack Obama is no Franklin Roosevelt.

Actually, I was referring to FDR’s political acumen and ability to manipulate public opinion to his own advantage: in these respects I regard him as infinitely better than BHO, even if I do not always agree with what he did with those talents. Regulation, by the way, is of course much older than the Roosevelt Administration. The Interstate Commerce Commission, e.g., dated from 1887 (and did not succeed at killing off most of the railroads until the late 1960s). The Theodore Roosevelt and Taft administrations enormously expanded anti-trust law, and the Wilson administration tried to regulate just about everything it could get its hands on under the guise of emergency war powers. They even regulated the behavior of the African-American inhabitants of Washington, D.C. . . . Herbert Hoover was also a great believer in regulation. Perhaps you were being sarcastic and the remark misfired?

I am wondering about another of your more substantive comments, however: that Marbury v. Madison is controversial. With whom? Given that both ends of the political spectrum (is there anyone left in the middle any more?) are thrilled whenever the USSC finds a law they do not like contrary to the Constitution, I don’t think we even need to refer to the 209 years of stare decisis regarding this case any more in order to consider it beyond questioning: neither side would be willing to live for ten minutes without it.

Eric Holder has NO DEDICATION to the Constitution, NO respect, and NO regard for his position! It PAYS well, gives him power that he could NEVER EARN! ONLY his boss gets his full attention!! And HE would never DARE question him! Eric’s answer to Smiths demand, was so ambiguous, that only about a dozen words were comprehensive! They were STILL not connected to the “subject”! But he DID fill three pages! Of DRIVEL!

As some one coming from a family of academics, let me just say that there are indeed Professors out there in universities who question things like scientific astronomy and mathematical proofs. After all, there is nothing inherently wrong with challenging collected (and accepted) wisdom, is there?

Also, I don’t recall having ever seen Obama teaching a Constitutional Law course. I thought the only two courses he ever taught were (1) a seminar on race theory; and (2) election law. He was always an adjunct faculty professor, as I understand it. Adjunct faculty professors typically don’t teach Con Law courses (at least I wouldn’t want them to).

And finally, Marbury is certainly a well-established jurisprudential norm in constitutional law, but it is no secret that almost every justice has reservations about actually applying it. For example, it woulnd’t necessarily be wrong, would it, for justices to simply invoke The Political Question doctrine as rendering the issue non-justiciable? Or the justices could just rigorously enforce some trivial procedural requirement and refrain from getting to the merits. And then there is always just plain deference to the legislature (rational basis review). So, in other words, there is nothing really *inexorable* about the rule of Marbury v. Madison.

But the real merit in Judge Smith’s questions is the candor with which he confronts the Marbury principle. Very rarely do you see a judge in his opinion squarely confront this controversial principle of constitutional law.

You are correct; he didn’t teach a Constitutional Law course. However, on 3/30/07 he said this – “I was a constitutional law professor, which means unlike the current president I actually respect the Constitution.” It’s a good thing his uneducated base doesn’t care about all of this as long as the checks keep getting sent.

So did the author of the essay (Mr. Lambert) study constitutional law from President Obama or did he not? If President Obama never taught constitutional law at the UoC then it would seem a central theme of the essay is invalid.

I thought that law students had a course in logic – at least my math students do. The president’s statement is clearly a wrong implication: from teaching constitutional law does not follow that he respects the constitution. Well, his actions do confirm it…

“Unless of course it is the Theory of Evolution. Even the Chinese scientific community has abandoned it.”

First off, this has nothing to do with evolution. Second, you are completely wrong. Show me where the scientific community of China has abandoned the empirical evidence of evolution. You are obviously spouting off stuff from your own personal opinion on evolution. You must be a creationist nutjob.

Marbury v. Madison a controversial principle of constitutional law? What year is this–1804? It certainly would be inappropriate for an appellate court (and certainly the Supreme Court of the United States) to refrain from reaching the merits of a case involving the application of a clearly unconstitutional law on Political Question or other procedural grounds.

“As some one coming from a family of academics, let me just say that there are indeed Professors out there in universities who question things like scientific astronomy and mathematical proofs. After all, there is nothing inherently wrong with challenging collected (and accepted) wisdom, is there?”

This is an incredibly misleading statement which you attempt to use to validate your argument. Of course it’s not inherently wrong to challenge collected wisdom, but then you must ask if all methods for challenging wisdom are acceptable. Surely, it is wise not to kill your neighbor, right? But maybe I will challenge that notion, because it’s not inherently wrong to do so, by killing my neighbor. It is quite absurd I know, but so is attempting to qualify your argument with a vague and faulty statement.

Further, why would you attempt to use such a broad statement to justify an incredibly unique and singular situation? If we applied your foolish statement more specifically to the topic we would undoubtedly elicit a different answer. “Is it inherently wrong for the president of the United States to publicly make misleading comments that question collective wisdom?”

I truly thank you and Judge Smith for taking a stand against President Obama. Our country is losing more and more of itself with each passing day and Obama speech/executive order. I am one of the silent majority who is scared out of her mind over what this president is doing to our country! From Gainesville, Florida

As a faithful Christian and strong conservative, I agree with what you just said. Our American Constitution, with the backdrop of the Declaration of Independence, is exactly what makes our country so great. It isn’t a new idea (ask Aristotle), it’s just the right idea…. the protection of Individual Liberty. Our Constitution, as is clearly understood, serves to protect our inalienable right to freedom , our ability to live by our own free will, to practice our religion, our atheism, pursue our own individual happiness, to maximize our individual potential with this one precious life we each have here on earth, to seek the truth, individually and collectively, all while not infringing on the rights of our neighbor/brother. Anything short of this and we’re not what our Founding Fathers brilliantly and in my opinion, Providentially, established for the creation and continuance of our country. I am a novice when it comes to even understanding our Founding Fathers and our Constitution, but it is something I am presently devoting a lot of time to as will my family and hopefully the rest of the American citizenry. Here I want to give a big ‘hats off’ to Hillsdale College and their ‘free’ Constitution 101 on-line course. Whether it’s DOMA or Roe v/s Wade or Obamacare, their unconstitutionality, i.e. their infringement on our individual rights is what our Supreme Court is to determine, apolitically, nonideologically, with no regard to popular opinion/picketing/occupying/tweeting/and least of all media and polling. Where we may differ, however is that short of this i.e. short of the existence of intellectual integrity in our Judiciary ( what I see is presently lacking in our Legislative and Executive branches, particularly these last few years) the people will have no choice but to revolt… again. I think we want the same thing….TRUTH. God Bless you Amanda (please take that as the highest gift from my perspective) and keep up the good fight!.

[…] Thom Lambert, one of Obama’s former law students at Chicago, informs us that, in fact, Obama didn’t teach Marbury v. Madison. Instead, his course focused on the Fourteenth Amendment (h/t J.P. Freire): President Obama taught “Con Law III” at Chicago. Judicial review, federalism, the separation of powers — the old “structural Constitution” stuff — is covered in “Con Law I” (or at least it was when I was a student). Con Law III covers the Fourteenth Amendment. (Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases – Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.) Of course, even a Con Law professor focusing on the Bill of Rights should know that the principle of judicial review has been alive and well since 1803, so I still feel like my educational credentials have been tarnished a bit by the President’s “unprecedented, extraordinary” remarks. […]

[…] Do take the time to click here and read Mr. Lambert’s whole post, which also includes an excerpt from the transcript of the hearing before the U.S. Court of Appeals for the 5th Circuit — Judge Smith’s remarks will have you laughing and cheering [Michelle Malkin's reaction: 'Bwahahahahahahahahahahahahaha' / Darleen Click's is here]. […]

[…] on Obamacare. The last post that finally motivated me to write out my thoughts can be found here. Rate this: Share this:TwitterFacebookStumbleUponMorePrintEmailLinkedInRedditDiggLike this:LikeBe […]